Felton v. Chandler

• Decision Date: 03 July 1947
• Docket Number: No. 31468.,31468.
• Citation: 43 S.E.2d 742
• Parties: FELTON. v. CHANDLER et al.
• Court: Georgia Court of Appeals

43 S.E.2d 742

FELTON.

v.CHANDLER et al.

No. 31468.

Court of Appeals of Georgia, Division No. 2.

July 3, 1947.

Syllabus by the Court.

1. The Declaratory Judgments Act, Ga.L.1945, p. 137, provides for declaratory judgments and also provides that the act is to be liberally construed.

2. Under the provisions of such act, a declaratory judgment is available in a case of "actual controversy" to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.

3. " 'There are two types of action in which declaratory relief is invoked; (1) Where the plaintiff seeks a declaration under circumstances wherein no coercive decree is possible; and (2) where the plaintiff, though in position to sue for an executory or coercive decree, "contents himself with the milder declaration of rights as adequate to his needs and purposes." In the first class of cases the declaratory judgment is the exclusive remedy, but only because no other remedy is available. In the second class the declaratory judgment is available because plaintiff is content with the mere declaration for which the statute provides even though he might have a coercive judgment or decree by asking it.'"

4. Declaratory judgments are not confined to cases where no other relief is available.

5. A declaratory judgment will lie when there are some facts or circumstances which necessitate a determination of disputes "in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest."

6. If the plaintiff on the facts in the instant case is entitled to a declaratory judgment under the rule just stated, and prefers the mild rather than the harsh remedy, a declaration, in contrast with coercive relief, would enable the issue to be determined without destroying the status quo or the relations between the parties. It is not the function of our courts to force upon him a more drastic remedy; he may pursue the milder remedy, a declaratory judgment.

7. If an action for a declaration raises issues which are fictitious, colorable, hypothetical, abstract, academic, or dead, and hence moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues.

8. The Georgia statute provides that it should be liberally construed, but it "manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy."

9. "Where * * * a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; * * *."

10. In the instant case the complaint seeking a declaratory judgment presented an actual controversy to which the judicial power of the Superior Courts extends. The court erred in sustaining the general and special demurrers.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Action by A. C. Felton against Sam S. Chandler and others for declaratory judgment concerning rights under a lease. To review an adverse judgment, the plaintiff brought error to the Supreme Court. The Supreme Court, 39 S.E.2d 654, transferred the case to the Court of Appeals.

Judgment reversed and cause remanded for further proceedings.

The plaintiff, A. C. Felton, brought suit against P. G. Hogan, Sam S. Chandler, and A. C. Tyler for a declaratory judgment. In the petition of the plaintiff, the lessor, it is alleged, briefly stated, that the lessee, Hogan, sub-let and assigned his lease to Chandler and Tyler; that theterms of the lease have been violated by the defendants because the lease has been sub-let and assigned without the consent of the lessor, the sub-lessees and assignees are conducting a business in the premises different from that contemplated and authorized in the lease, and the sub-lessees and assignees have made certain alterations in the building contrary to the terms of the lease; that a controversy exists between the parties in that the defendants, contrary to the contention of the plaintiff, contend that the terms of the lease have not been violated. The petition as amended is in two counts and is brought by the plaintiff lessor against the defendant lessee and his sub-lessees and assignees. Both counts are essentially the same, the only material difference being that count one alleges a subletting of the premises, and count two alleges an assignment.

The written contract of lease was made a part of the petition. The provisions of the contract material to a determination of the issues here involved are substantially these:

"This Agreement, Made and entered into * * * between A. C. Felton of the first part * * * and P. G. Hogan, of the other part, hereinafter called Lessee. (It is mutually agreed by the parties hereto, where either is mentioned herein, that same refers to their heirs, executors, administrators, successors or assigns, who are bound as fully and completely by the covenants herein as the parties hereto.)

"Witnesseth: That the said Lessee has this day rented and leased from said Lessor the following described premises * * * to be used for a storage garage and filling station and for the sale of tires and accessories and repairs to automobiles, for the term of ten years commencing on the 1st day of January, 1941 * * * Lessor, at his option, upon a breach of this contract, may card for rent and sublet the premises at the best price obtainable by reasonable effort. * * * Lessee agrees not to sublet said premises, or any part thereof, without the written consent of said Lessor; and will deliver said premises at the expiration of this lease in as good order and repair as when first received, natural wear and tear excepted. * * * Lessee is to make no changes of any nature in the above named premises without first obtaining written consent from said Lessor or his agent * * *. Permission is now given Lessee to sublet the leased property for the same kind of business conducted on the premises by Lessee. Otherwise, Lessee must obtain written consent of Lessor before subletting. * * * All installations of equipment, such as tanks, pumps, lifts, etc., necessary for operation of Lessee's business shall be done at the expense of Lessee and such installed property shall remain the property of the Lessee who shall have the right to remove same at the termination of this lease. Lessor has contracted with architects for the remodeling of said property and it shall be remodeled according to specifications as agreed to and as from time to time amended, subject to agreement between Lessor and Lessee. * * * Lessee shall pay any increase in the fire insurance premium caused by his use of the premises for repairs of automobiles or other repairs. Lessor shall maintain the roof of the buildings in a good state of repair. No repairs shall be made by the Lessor during the period of this lease except as herein provided, the Lessee agreeing to make all needful repairs except those herein specified to be made by Lessor. Lessee shall make no structural changes in the premises without the written consent of Lessor. * * *"

Counts one and two of the plaintiff's petition as amended allege that the defendants are operating a business on the premises which is not authorized by the contract of lease and contend that the provision that the premises shall be used for "a storage garage and filling station and for the sale of tires and accessories and repairs to automobiles" has been violated for the following reasons: "(a) They have installed and operate there a noisy tire re-capping machine; (b) they repair there large trucks and tractors and trailers, some of which are so long that they must be 'flagged' out of the premises; (c) they use the premises as an adjunct to and as an auxiliary headquarters for a surburban bus company in which the defendant, Chandler, has a substantial interest * * *; (d) they have enlarged and expanded the facilities in said premises to provide awaiting room or lounge for the drivers of said suburban busses and for mechanics; (e) they have enlarged the gasoline intake facilities so as to service and they do service the said suburban busses and other large interurban busses; (f) they steam-wash the said busses causing the steam to enter the premises reserved for and occupied by Plaintiff on the second floor of said buildings, creating a fog and mist therein, and cause damage to files, papers and other office equipment of Plaintiff."

The plaintiff avers further that the contract of lease has been breached because of unauthorized alterations and repairs made on the premises without the consent of the plaintiff. The plaintiff alleges that the following unauthorized repairs and alterations have been made by the defendant: "The installation and operation of a true recapping machine, the running of a large amount of electric wiring, the installation of additional light sockets and lights, the installation of a toilet and lavatory and clothes lockers and dressing room, the boarding up of a wall on left of first floor entrance-way, the installation of bins, shelf-ing, racks, benches and tables, the erection of an enclosure on the right side of the entrance-way and one on left side of the entrance-way of the building, the erection of an enclosure in the rear of the building on the first floor, the installation of an additional office and drivers' waiting room. * * *"

The plaintiff prays for a declaratory judgment, declaring the rights and status of the parties, and declaring that the lessee has breached the lease, that the sub-lessees and assignees have no legal right to occupy the premises, and for general relief.

To an order of the trial judge sustaining general and special demurrers to his petition, the plaintiff excepted.

Carlisle & Bootle, of Macon, for pla...